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At the Intersection of Major Questions

Posted by: Brooke Leeton on Jul 8, 2024

THE MAJOR DEBATE: THE BASIS AND EFFECT OF THE MQD IN THE ADMINISTRATIVE STATE[1]

In June of 2022, a majority of the Supreme Court invoked the Major Questions Doctrine (MQD) for the first time.[2] This young doctrine attempts to address what the Supreme Court views as a developing problem following the boom of the administrative state: “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”[3] The MQD curtails this effort by expecting Congress to be clear when “authorizing an agency to exercise powers of vast economic and political significance.”[4] If Congress has not been clear, a court will not presume a grant of authority.[5]

With roots traceable no earlier than 1994 (by the most generous estimates), the doctrine is relatively new.[6] Nevertheless, a majority of justices on the Supreme Court argue the MQD is grounded in principles that justify its endorsement.[7] Exactly what that provenance is, the justices do not agree.[8] But whatever its provenance, the MQD purports to reign-in the administrative state,[9] reserve lawmaking to “the people” through their democratically elected representatives,[10] and reassert the court’s position in deciding questions of law and statutory interpretation.[11]

As the doctrine gains traction, concerns multiply regarding broader implications for the administrative state. Most prominently, the MQD has tempered — or eclipsed — the deferential Chevron doctrine which has restrained courts from asserting their own interpretations over the “reasonable” agency interpretations of “ambiguous” enabling statutes.[12] Legal theorists grow concerned the anti-agency momentum espoused in the MQD may lead to the downfall of the administrative state.[13] Even now, Chevron itself sits on the judicial chopping block.[14]

Perhaps most problematic for practitioners, Chevron deference and the MQD seem to occupy a similar, if not identical, field of applicability. Yet their analyses are far from parallel: Chevron involves an agency-friendly, deferential rule while the MQD doctrine applies a more “skeptical” approach to agency action.[15] While the intersection between the deferential Chevron and the skeptical MQD has led to unease, these seemingly oil and water doctrines can be reconciled. Far from “a completely unbearable cover story that masks a deregulatory agenda,”[16] the MQD has a modest, logical place in administrative jurisprudence: a place that need not topple the administrative state. While the doctrine may not be a mouse, it need not be an elephant.[17]

This paper argues that the MQD belongs in the constitutional field of nondelegation as a companion to the intelligible principle test — not merely a component of statutory interpretation as a companion to Chevron. Placing the MQD in this framework provides substance to largely ignored constitutional restraints,[18] mirrors current precedent in the intelligible principle,[19] and justifies the differences between the MQD and Chevron deference.[20]

View the full submission here

[1]This article was written and submitted prior to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo which overturned four decades of precedent known as Chevron Deference. 603 U.S. ___ (2024). The court’s recent decision profoundly revolutionizes the judicial approach to agency action by eliminating a rule of deference formally afforded to agencies when interpreting ambiguous provisions of federal statutes administered by such agencies. Loper Bright seeks to align its statutory interpretation with the Administrative Procedure Act, which grants courts broad authority to review agency actions. 5 U.S.C. § 706. By strengthening the court’s role in reviewing agency actions across the board, the Loper Bright decision may undercut the relevancy of and necessity for the Major Questions Doctrine itself, which provided an end-around for closer analysis of agency action. Now, all agency “questions” are fair game — major and minor alike.

[2] West Virginia v. EPA, 597 U.S. 697, 724 (2022) (“this is a major questions case.”).

[3] Id.

[4] NFIB. v. OSHA, 595 U.S. 109, 117 (2022) (citing Ala. Ass'n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (per curiam)).

[5] Id.

[6] In MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994), the court made an eerily similar analogy to the forthcoming, famous “elephants in mouseholes” analogy attributed to the MQD: “For the body of a law, as for the body of a person, whether a change is minor or major depends to some extent upon the importance of the item changed to the whole. Loss of an entire toenail is insignificant; loss of an entire arm tragic.”[5]

[7] See generally West Virginia v. EPA, 597 U.S. 697, 735-53 (2022) (Gorsuch, J., concurring); Biden v. Nebraska, 600 U.S., ___, 143 S. Ct. 2355, 2376-84 (2023) (Barrett, J., concurring). But see West Virginia, 597 U.S. at 753-84 (Kagan, J., dissenting); Biden, 600 U.S., ___, 143 S. Ct. at 2384-99 (Kagan, J., dissenting)

[8] See generally Biden, 600 U.S., ___, 143 S. Ct. 2355; West Virginia, 597 U.S. 697.

[9] West Virginia, 597 U.S. at 724 (2022) (majority opinion).

[10] Biden, 600 U.S., ___, 143 S. Ct. at 2374.

[11] Biden, 600 U.S., ___, 143 S. Ct. at 2379.

[12] See generally Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984).

[13] See e.g., Supreme Court Decision Could Shift Power Away From Federal Agency Experts, Cap Action 20, American Progress https://www.americanprogress.org/article/supreme-court-decision-could-shift-power-away-from-federal-agency-experts/ (Jan. 3, 2024) (overturning Chevron “will upend 40 years of foundational law”).

[14] Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (argued Jan. 17, 2024).

[15] Compare Chevron, 467 U.S. at 842-43, with West Virginia v. EPA, 597 U.S. 697 (2022).

[16] What we mean when we say that the major questions doctrine is “made up,” Admin Wannabe (July 1, 2022) https://adminwannabe.com/?p=109.

[17] Cf Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (The MQD has been justified by the rationale that Congress does not “hide elephants in mouseholes”).

[18] See infra Part III, Section A.

[19] See infra Part III, Section B.

[20] See infra Part III, Section C.